0120071360
06-06-2007
Dorothy R. Drain, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dorothy R. Drain,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071360
Hearing No. 220-2005-00187X
Agency No. VA10
DECISION
On January 12, 2007, complainant filed an appeal from the agency's
December 6, 2006, final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUES PRESENTED
Whether complainant was discriminated against in reprisal for prior EEO
activity and based on her race (African American) when on: (1) December 7,
2004, she learned that her proficiency report would be delayed for ninety
days; (2) on November 23, 2004, she was issued written counselings; and
(3) she was subjected to harassment: through various reports of contact,
by being relieved of charge nurse duties, by being counseled for sick
leave usage and mismanagement of a controlled substance, by being
intimidated and forced to speak to the Associate Director, when she
was not advised of reports of contact, when she was issued a proposed
suspension in December 2004, when she was denied a step increase in
January 2005, when since 2002, she has not been promoted and when she
was accosted in December 2005.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Registered Nurse at the agency's V.A. Medical Center facility
in Cincinnati, Ohio. On December 7, 2004, complainant learned that
her proficiency report would be delayed for ninety days. Complainant
maintains that she was not initially told the reason for the delay.
The report was subsequently delayed for an additional ninety days and as a
result of the delays her January 2005 periodic step increase was delayed.
Complainant was notified at some point that she was going to be placed on
a performance improvement plan (PIP). She began the PIP on January 28,
2005, was reassigned to a different floor and successfully completed
the PIP under a different manager.
Complainant was issued two written counselings on November 23, 2004.
One was related to sick leave usage and the second was in regard to
the mismanagement of a controlled substance and not writing a patient
transfer note. On November 30, 2004, complainant maintained that she
was temporarily relieved of charge nurse duties without explanation.
She contends that this was done because she left work on November 20,
2004, before a relief person arrived on the floor. Complainant contends
that she left work that day because she was sick and maintains that
before she left she told the nurse on duty that she was leaving, taped
her report and left. She maintains that what she did was sufficient.
On December 27, 2004, complainant indicates that she was intimidated and
coerced into speaking with the Associate Director. Complainant explained
that while she was with a patient the Associate Director attempted to
chat with her. Complainant maintained that she did not feel comfortable
talking with the Associate Director because of the way that she had
treated her in a meeting.
On December 29, 2004, complainant was presented with copies of
approximately eight reports-of-contact that had been written about her.
These reports were shown to her as part of the evidence file compiled in
support of a proposed suspension. Complainant was informed of a proposed
three day suspension for making inappropriate comments, disrespectful
conduct and for making inappropriate comments in a patient record.
The suspension was not issued but rather was reduced to an admonishment
by the Director of the Medical Center in May 2005.
Complainant also maintains that even though she has received very good
ratings she has never been promoted. Additionally, complainant contends
that her second level supervisor approached her in the elevator and told
her that her uniform was not appropriate. Complainant indicates that
the supervisor jerked at her pants and pushed her. Complainant indicates
that she went to security and complained to management about the assault
but nothing was done. Complainant maintains that she was off of work
for the next four days and was charged AWOL even though she submitted
a doctor's excuse for her absence.
On January 18, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of race (African-American),
reprisal for prior EEO protected activity, and was subjected to a hostile
work environment. At the conclusion of the investigation, complainant
was provided with a copy of the report of investigation and notice
of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing and the AJ held a hearing
on June 27 and 28, 2006 and issued a decision on November 21, 2006.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to discrimination
as alleged.
The AJ found that complainant failed to establish a prima facie
case of race discrimination because she failed to demonstrate that
similarly situated employees not of her protected groups were treated
more favorably. Specifically, the AJ indicated that while complainant
asserted that she was treated differently than coworkers, evidence
showed that other nurses (Caucasian) have had proficiencies and step
increases delayed, been placed on PIPS, issued written counselings for
similar reasons as the complainant, issued discipline and not promoted.
The AJ indicated that she found no evidence that complainant's supervisor
considered anything other than complainant's work performance.
With respect to the claim of reprisal, the AJ found that complainant
had established a prima facie case of reprisal. Nevertheless, the AJ
determined that the agency had articulated legitimate nondiscriminatory
reasons for its actions, namely that the record supported that all of
the steps taken were work related and complainant's first-line manager
was not aware of her prior EEO activity. The AJ found that while
complainant disagreed with the stated reasons, she did not proffer any
evidence that showed that the reasons were false or that discriminatory
animus and retaliatory motivation were involved.
Finally, regarding complainant's claim of hostile work environment, the
AJ found that complainant had not shown that her work environment was
so severe and pervasive as to be deemed hostile and trigger a violation
of Title VII. The AJ indicated that the actions complained of were not
frequent, severe, physically threatening, humiliating, or reflective of
disparate treatment. The AJ determined that the record showed that the
actions were taken because of conduct/performance issues.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency witnesses lied throughout
the entire process. She maintains that she was not notified about
the testimony of the Associate Chief Nurse and her testimony was used
against her. Complainant also maintains that if report-of-contacts are
not used as disciplinary action or against employees, then why was it used
against her in support of her suspension. Further, complainant contends
that the report-of-contacts were all obtained within a three month time
period just before her proficiency report. Finally, complainant notes
that while the Associate Chief Nurse had given her a satisfactory report,
she was so upset about it that she did not sign it. Complainant states
that she has been treated unfairly.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, the Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment usually are not sufficient
to state a harassment claim. See Phillips v. Department of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health
and Human Services, EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person in
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, a complainant may assert a Title VII cause of action if the
discriminatory conduct was so severe or pervasive that it created a
work environment abusive to employees because of their race, gender,
religion, or national origin. Rideout v. Department of the Army,
EEOC Appeal No. 01933866 (November 22, 1995)(citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration
denied EEOC Request No. 05970995 (May 20, 1999). Also, the trier of
fact must consider all of the circumstances, including the following:
the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris, 510 U.S. at 23.
In the case at hand, the Commission finds that the record contains
substantial evidence to support the AJ's factual findings. The record
clearly shows that others, not of complainant's protected groups,
were similarly disciplined. Further, while complainant established a
prima facie case of reprisal discrimination, we find that the agency
articulated a legitimate nondiscriminatory reason for its action.
Specifically, the agency indicated that: in order to give complainant a
satisfactory rating, her rating was delayed and she was placed on a PIP;
complainant was issued two written counselings because she was close to
having a negative leave balance and because she did not document/chart
a controlled substance as is required; she was temporarily relieved of
charge nurse duties because she left work on November 20, 2004 before
a relief person appeared on the floor; a proposed suspension was issued
because complainant allegedly yelled at the Associate Director while in
a patient area; complainant received reports-of-contacts but was not told
about them because management was not required to provide employees with
a copy of every report of contact; complainant was not promoted because
she lacked displays of leadership; and the Associate Chief Nurse contends
that she never touched complainant after she told her that she was not
properly dressed. Like the AJ, the Commission finds that complainant
has not shown that the agency's articulated reasons were pretext for
discrimination.
We also find that complainant failed to show that she was subjected to a
hostile work environment because, among other reasons, we find no evidence
that the above actions, even if they occurred as alleged by complainant,
were taken because of complainant's race and previous EEO activity.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___6/6/07________________
Date
2
0120071360
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120071360